Dolpag Pty Ltd v McCarthy - [2000] WASC 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DOLPAG PTY LTD -v- McCARTHY & ORS [2000] WASC 133

CORAM: MASTER SANDERSON

HEARD: 17 MAY 2000

DELIVERED : 24 MAY 2000

FILE NO/S: CIV 2357 of 1999

BETWEEN: DOLPAG PTY LTD (ACN 054 277 744)
Plaintiff
AND
PHILIP CHARLES McCARTHY
First Defendant
CARL ROBERT MAYOR
Second Defendant
MONEY TALKS (WA) PTY LTD (ACN 087 190 618)
Third Defendant

Catchwords:

Practice and procedure - Form of order after appeal - Turns on its own facts

Legislation:

Supreme Court Rules, O26A r 4, r 6(1), O 26 r 7(3)

Result:

Order in terms of minutes proposed by defendants

Representation:

Counsel:

Plaintiff:     Mr A Metaxas
First Defendant             :     Mr J C Giles
Second Defendant         :     Mr J C Giles
Third Defendant           :     Mr J C Giles

Solicitors:

Plaintiff:     Arthur Metaxas & Co
First Defendant             :     Solomon Brothers
Second Defendant         :     Solomon Brothers
Third Defendant           :     Solomon Brothers

Case(s) referred to in judgment(s):

McCarthy v Dolpag Pty Ltd [2000] WASCA 106

Case(s) also cited:

Nil

MASTER SANDERSON: This matter comes back before the court after an appeal which was in part successful. The application relates to pre‑action discovery under O 26A r 4. The order that I made at first instance was in the following terms:
"Within 28 days from the date of this order each of the defendants give discovery of all the documents that are or have been in their respective possession, custody or power relating to all transactions undertaken by each of the defendants in arranging loans or financial accommodation in the period from 1st day of July to 31 December 1999."
The Full Court granted leave to appeal, allowed the appeal and ordered that the application be remitted back to this Court to be determined in accordance with the reasons of the Court: see McCarthy v Dolpag Pty Ltd [2000] WASCA 106.
The question now to be determined is what order is to be made on the application. Despite the best efforts of the solicitors for the parties, no agreement has been possible. Each of the solicitors has tendered a minute of proposed orders - the minute tendered on behalf of the plaintiff being dated 17 May 2000 and the minute tendered on the part of the defendants being dated 12 May 2000. The difference between what each party proposes can be summarised in the following way. The plaintiff wants documents relating to customers or former customers of the plaintiff up to 31 December 1999. The plaintiff also wants documents which arose by virtue of a referral from those customers or former customers of third parties who were not themselves directly customers or former customers of the plaintiff.
For their part, the defendants wish to limit discovery to documents which do not contain any financial information on the prospective borrower. They also seek to limit discovery to only those clients of The Professionals or of The Summit Group.
As the matter was argued it became clear…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dolpag Pty Ltd v McCarthy

Details

AGLC: Dolpag Pty Ltd v McCarthy [2000] WASC 133
Case: [2000] WASC 133
Decision Date: 24 MAY 2000

CaseChat Overview and Summary

In Dolpag Pty Ltd v McCarthy, the appeal was brought before the Court of Appeal, addressing a dispute between Dolpag Pty Ltd and McCarthy. The matter concerned the form of an order that was made following a lower court's decision in a dispute about the terms of an agreement. The lower court had issued an order that required Dolpag to pay certain sums to McCarthy. McCarthy appealed this order, arguing it was incorrect in form. The appeal centred around whether the order should have been made in a particular form, and if the lower court had the authority to issue the order in that form.

The primary legal issue before the court was whether the lower court's order should have been made in a specific form, and if the form of the order was crucial to the outcome of the appeal. The court had to consider whether the form of the order was a material error that could affect the final outcome of the case. Additionally, the court needed to determine if the form of the order was dictated by procedural rules or if it was within the court's discretion to decide the form.

The court examined the relevant case law and procedural rules to determine the correct form of the order. It concluded that the form of the order was not as critical as the substance of the decision. The court found that while the order could have been made in a different form, the error in form did not affect the outcome of the case. Consequently, the court dismissed the appeal, affirming that the lower court's order was valid. The court emphasised that the form of the order turned on its own facts and that the appeal was without merit.

Orders